Kerala High Court
Ajmal vs A. Majeed Khan on 15 February, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
OP(C) NO. 2810 OF 2023
AGAINST THE ORDER IN EA 580/2023 IN EP 57/2023 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT, KOZHIKODE
PETITIONER/3RD DECREE HOLDER/3RD PLAINTIFF:
AJMAL
AGED 29 YEARS
S/O. M.P. ABDULLA KOMBI, PONNAMGOTT HOUSE, PARAKKADAVU,
CHEKKIAD, VATAKARA TALUK, KOZHIKODE, PIN - 673509
BY ADVS.
R.PARTHASARATHY
B.KRISHNAN
RESPONDENTS/JUDGMENT DEBTORS & DECREE HOLDERS 1 AND 2/DEFENDANTS &
PLAINTIFFS 1 & 2:
1 A. MAJEED KHAN
AGED 64 YEARS
S/O. AMANULLA KHAN, 39/140, SHAN PARAYIL PARAMBA,
MAVOOR ROAD, KUTHIRAVATTOM, KOZHIKODE, PIN - 673016
2 SHAHITHA MAJEED KHAN
AGED 53 YEARS
W/O. A. MAJEED KHAN, SHAN PARAYIL PARAMBU, MAVOOR ROAD,
KUTHIRAVATTOM, KOZHIKODE, PIN - 673016
3 MUHAMMED ABDULLA,
AGED 38 YEARS
S/O. M.P. ABDULLA KOMBI, PONNAMGOT HOUSE, PARAKKADAVU,
CHEKKIAD, VATAKARA TALUK, KOZHIKODE, PIN - 673509
4 ANZAR ABDULLA
AGED 34 YEARS
S/O. M.P. ABDULLA KOMBI, PONNAMGOT HOUSE, PARAKKADAVU,
CHEKKIAD, VATAKARA TALUK, KOZHIKODE, PIN - 673509
OP(C) NO. 2810 OF 2023 2
BY ADVS.
P.JAYA
SWAPNALEKHA K.T.
N.G.SUNIL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 2810 OF 2023 3
T.R. RAVI, J.
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O.P(C) No.2810 of 2023
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Dated this the 15th day of February 2024
JUDGMENT
The original petition has been filed by the decree
holders in a decree which is passed ex parte. Respondents
are the judgment debtors. The property was directed to be
delivered by the Execution Court, but the Amin had reported
objection by the respondents. The decree holders filed Ext.P4
application to break open with Police Aid which has been
adjourned. It is stated that the application filed by the
petitioner was posted on 11 days between 14.08.2023 and
20.12.2023 but nothing transpired. The original petition has
been filed in the above circumstances.
2. The respondents entered appearance and
submitted that they have filed applications for setting aside
the ex parte decree and the same were pending. This Court
had called for a report from the concerned court and on
20.12.2023 a communication was addressed to the Registrar
stating that E.A.Nos.569, 571 and 580 of 2023 are pending
disposal and at least two months time will be required for
disposal of the applications. On 05.01.2024 this court had
passed a judgment directing the 1 st Additional Sub Court,
Kozhikode to consider and pass orders on E.A.Nos. 569, 571
of 2023 at the earliest, if possible, on the next posting date of
10.01.2024 itself. Thereafter, the respondents submitted that
R.P.No.45 of 2023 is pending before the Court of Additional
Sub Judge No.III for the last six months for consideration and
if the delivery is ordered pending the said application they
will be put to serious prejudice. This Court has recalled the
order dated 05.01.2024 and posted the original petition for
fresh hearing. Thereafter, a report was called for again from
the III Additional Sub Judge and on 22.01.2024 a letter was
addressed to the Registrar wherein it is stated that O.S.No.78
of 2022 was disposed on 17.11.2022 by an ex parte decree.
The defendants had filed I.A.No.2 of 2023 with a delay
condonation petition on 28.01.2023 for setting aside the
ex parte decree. The I.A was posted for hearing on
13.04.2023 on which date it is stated that the petitioners
were absent and there was no representation. In the above
circumstances, the petition for setting aside ex parte decree
was dismissed on 13.04.2023. Thereafter, the defendants
filed RPIA 44 of 2023 and 45 of 2023 with delay condonation
petitions on 25.08.2023 for restoring I.A.Nos.1 and 2 of 2023.
It is stated that the Presiding Officer was transferred and
there was no regular sitting in the court from 01.06.2023 and
the same stands notified. It is also stated that an application
for advancing the hearing on RPIA 44 of 2023 and 45 of 2023
was submitted and the same was posted for objection and
hearing on 22.01.2024 and later on to 23.02.2024. When the
above report was put to the counsel for the parties, the
counsel for the respondents submitted that it will not be
correct to say there was no representation. In the above
circumstances, this Court had called for a report with a copy
of the B diary relating to the case maintained in the III
Additional Sub Court and the II Additional Sub Court,
Kozhikode. It is seen that there was a posting as stated in the
earlier report and there was no representation. Earlier the
respondents have been directed to deposit an amount of
Rs.14,00,000/- before the court below. On 31.01.2024 the
counsel for the respondents submitted that they were able to
raise only Rs.5,00,000/- and when the same was tendered, it
was not accepted. Thereafter, this Court directed to deposit
the amount on or before 09.02.2024. When the case is taken
up today, it is submitted that an amount of Rs.14,00,000/-has
been deposited on 09.02.2024. As seen from the report the
case stands posted on 23.02.2024.
In the above circumstances, this original petition is
disposed of directing the II Additional Sub Court, Kozhikode
to take up RPIA 44 of 2023 and 45 of 2023 which has been
placed before the court on the basis of advance petitions filed
by the respondents and to hear and dispose of the same at
the earliest, at any rate, within one month from the date of
receipt of a copy of this judgment. The amount in deposit
shall remain in deposit for the time being and after the
disposal of RPIA 44 of 2023 and 45 of 2023 it is open to the
plaintiff to file appropriate application for orders about the
manner in which the amount in deposit should be dealt with.
The steps for execution shall be kept in abeyance till the
disposal of RPIA 44 of 2023 and 45 of 2023.
Sd/-
T.R.RAVI
JUDGE
LEK
APPENDIX OF OP(C) 2810/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF DECREE PASSED BY III ADDL.
SUB COURT IN O.S. 78/2022 DATED
17.11.2022
Exhibit-P2 TRUE COPY OF EXECUTION PETITION, E. P.
NO. 57 OF 2023 IN O. S. NO. 78 OF 2022
DATED 09.01.2023 ON THE FILE OF SUB COURT
(1A), KOZHIKODE
Exhibit-P3 TRUE COPY OF DELIVERY REPORT DATED
10.8.2023 BY AMIN
Exhibit-P4 TRUE COPY OF THE AFFIDAVIT AND PETITION
FILED BY PETITIONER DATED 10.08.2023 FOR
DELIVERY WITH POLICE AID AS E.A. 580/2023
Exhibit-P5 TRUE COPY OF THE STATEMENT SHOWING SCROLL
OF POSTINGS
RESPONDENT EXHIBITS
Exhibit R1(a) A TRUE COPY OF THE RESTORATION
APPLICATION RP NO.45/2023 OF THE
ADDITIONAL SUBORDINATE JUDGE'S COURT
KOZHIKODE III
Exhibit R1(b) A TRUE COPY OF THE E-COURT STATUS OF RP
NO.45/ 2023 DATED 19.12.2023
Exhibit R1(c) A TRUE COPY OF THE JUDGMENT IN OP(C)
NO.2810/2023 DATED 05.01.2024
